Several recent cases demonstrate this important defense for directors and officers is not foolproof and suggest some courts may be adopting a disturbing trend toward diluting the benefit of the business judgment rule.

1. The following article is from National Underwriter’s latest online resource,
FC&S Legal: The Insurance Coverage Law Information Center.
The Insurance Coverage Law Information Center
BUSINESS JUDGMENT RULE UNDER ATTACK
Several recent cases demonstrate this important defense for directors and officers is
not foolproof and suggest some courts may be adopting a disturbing trend toward
diluting the benefit of the business judgment rule.
November 22, 2013 Dan A. Bailey, Bailey Cavalieri LLC
The business judgment rule (BJR) has served for decades as the single most important protection against personal liability
for directors and officers. First developed by courts over a century ago, this common law defense prevents courts from
second-guessing the quality of a business decision by directors and officers. The two primary underpinnings of the BJR
are as follows:
1.
Courts should not substitute their inexperienced business decisions for the good faith decisions of independent and
diligent business executives, who have a far greater ability to make appropriate business decisions based on their
extensive commercial knowledge, experience, and training.
2.
Executives should be encouraged to take prudent risks for the benefit of the company and its constituents and should
not be stymied by the fear of personal liability if a decision ultimately harms the company.
The BJR generally applies to business decisions made by disinterested and reasonably informed directors and officers
who honestly and rationally believe their decision was in the best interest of the company. If the BJR applies, directors and
officers should not be liable for the quality or results of their decisions but only the process used to make the decision.
As summarized in this article, several recent cases demonstrate this important defense for directors and officers is not full
proof and suggest some courts may be adopting a disturbing trend toward diluting the benefit of the BJR. At a minimum,
these cases highlight the volatile liability exposure that directors and officers face despite the BJR and the need for strong
DO financial protections to address that exposure.
BJR Inapplicable to Officers
Most courts and commentators have assumed without much discussion or analysis that the BJR rule applies to both
directors and officers. But, two recent decisions by federal district courts in California ruled that the BJR applies only to
independent directors, not officers.
In FDIC v. Perry, 2011 U.S. Dist. LEXIS 143222 (C.D. Cal., Dec. 13, 2011), the FDIC alleged that the CEO of IndyMac Bank
breached his fiduciary duties to the failed bank by allowing IndyMac to generate and acquire more than $10 billion in
risky residential loans, resulting in more than $600 million in losses to the bank. The CEO argued the lawsuit should be
dismissed based on the BJR. The court ruled that under California law, both the common law and statutory BJR applied
only to directors, not officers, and therefore the court refused to dismiss the lawsuit.
With respect to the common law BJR, the court found no prior decision in California that applied the BJR to officers. The
court noted one California case that held the BJR did not apply to “interested directors who effectively were acting as
officers,” although the inapplicability of the BJR in that prior case could be explained by the directors’ “interested” status
rather than the directors’ de facto officer status. Without explanation, the court rejected the notion that the general
judicial policy of deference to business decisions shall apply to officers, which is obviously disturbing since courts are
generally ill-equipped to substitute their business decisions (using the benefit of 20/20 hindsight) for the real-time
business decisions of executives.
With respect to the California statutory BJR, the court observed that the statute provides that directors who perform their
duties as directors in accordance with the statutory standards have no liability for failing to properly discharge their duties
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2. as such. The statute, though, does not mention officers. In explaining the statute’s omission of officers, the court cited
to the legislative committee’s comments to the statute, which seems to acknowledge that officers were intentionally
excluded from the statute for the following reason:
Although a non-director officer may have a duty of care similar to that of a director, his ability to rely on factual
information, reports or statements may, depending upon the circumstances of the particular case, be more limited than
in the case of a director in view of the greater obligation he may have to be familiar with the affairs of the corporation.
In an unreported August 1, 2011, ruling in National Credit Union Administration v. Siravo, CV-10-01597 (C.D. Cal.), a
different federal district court judge in California also ruled that the BJR did not apply to officers, based on the plain
language of the California statutory BJR, which applies only to directors.
One can certainly debate the wisdom of excluding officers from the BJR. Even though officers are more knowledgeable
and involved in the company’s operations than independent directors, the underlying justifications for the BJR (i.e., courts
are ill-equipped to second-guess business decisions and should encourage prudent risk-taking) equally apply to claims
against directors and officers.
Whether these California decisions are followed by other courts in California or in other states is yet to be seen, but it
reflects the potential for a disturbing judicial abandonment of an important protection for officers.
BJR Inapplicable to Intimidated Directors
One of the key elements of the BJR is the requirement that the defendant director or officer must be disinterested (i.e.,
the business decision must be based on the corporate merits of the decision rather than extraneous considerations or
influences). Courts most frequently find this requirement lacking, and thus the BJR inapplicable, where the director or
officer has a conflict of interest with respect to the decision, such as a personal financial interest in the decision or a close
familial or business relationship which may impact the decision.
A recent Delaware Chancery Court decision ruled that otherwise disinterested directors may be considered “interested”
and thus lose the BJR protection by allowing another “interested” director to intimidate them into making a particular
decision.
In New Jersey Carpenters Pension Fund v. Info GROUP, Inc., 2011 Del. Ch. LEXIS 147 (Del. Ch., Sept. 30, 2011), a director
who owned 37 percent of the company’s outstanding stock encountered a personal cash liquidity crisis and concluded
that the best option to address that liquidity crisis was to promptly sell the company, regardless of whether the timing,
price, or process of the company sale was in the best interests of the company. The director lobbied the other directors to
pursue a sale even though the rest of the board (consistent with the advice of an investment banker) believed the market
conditions would make it difficult to obtain a good price for the company.
The conflicted director intensified his efforts to bring about a sale of the company by repeatedly threatening other
directors with lawsuits if they failed to sell the company, being generally disruptive at board meetings, and waging a
public campaign to fire the CEO. Eventually, the board was overwhelmed by the conflicted director and pursued a sale of
the company. As explained in an email from one director to another, the majority of the directors apparently “just want to
dump the company and run…based on the pain, trauma, time, and everything else.” The conflicted director continued
to disrupt the sale process by influencing the list of potential bidders, conducting unsupervised negotiations and leaking
confidential information about the sale to various parties. Ultimately, the Board accepted an offer to purchase the
company at a price per share below the then current market price.
In addition to finding the BJR inapplicable to the conflicted director, the court refused to dismiss the claims against the
other directors based on the BJR because “it is reasonable to infer that [the conflicted director] dominated the Board
Defendants through a pattern of threats aimed at intimidating them, thus rendering them non-independent for purposes
of [applying the BJR to their] voting on the Merger.”
Although the extreme facts of this case may explain the court’s ruling, the notion that directors may lose their BJR
protection by reason of a dominating or intimidating director or control person is disconcerting. The line between frank
discussions/disagreements and intimidation/domination can become blurred. When dissenting views or disagreements
arise, the Board should be extra cautious to create a clear and credible record that whatever decision is ultimately made is
supported by legitimate and compelling business reasons and is not influenced by extraneous considerations.
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3. BJR Inapplicable to Uninformed Directors
Another key element of the BJR is the requirement that the defendant directors and officers make an informed decision
by conducting a reasonably diligent investigation before acting. Typically, this requirement is satisfied if the directors
spend considerable time in making the decision and obtain advice from qualified experts. However, a recent federal Third
Circuit Court of Appeals ruling reversed the dismissal of claims against directors of a bankrupt non-profit company based
on the BJR even though the defendant directors received the advice of counsel, conducted several meetings and
pursued various options before making the challenged decision to file for bankruptcy protection.
In Official Committee of Unsecured Creditors v. Baldwin, 2011 U.S. App. LEXIS 19312 (3d Cir., Sept. 21, 2011), the court
ruled that the district court improperly granted a motion for summary judgment in favor of the defendant directors based
on the BJR, notwithstanding the directors’ apparent diligence. The Court of Appeals ruled that plaintiffs presented
credible evidence that the Board (i) received numerous red flags that senior officers upon whom the Board relied in
making its decision were neither competent nor diligent, (ii) eschewed a viability study prior to filing bankruptcy, and
(iii) diverted assets to another charitable organization which had an interlocking Board with the bankrupt company. As a
result, triable issues of fact existed which precluded summary judgment in favor of the defendant directors.
This decision demonstrates that all aspects of a Board’s decision should be reasonable and thorough. Although it is
unusual for a court to second-guess the adequacy of the directors’ diligence, if any part of the decision-making process
is less than robust, the BJR may not be available even if all other aspects of the decision-making process are proper.
Circumvent BJR
A more subtle way plaintiffs are now avoiding the applicability of the BJR is by bringing traditional DO mismanagement
claims as federal securities law claims. The BJR applies only to common law breach of fiduciary claims (which are usually
asserted in shareholder derivative lawsuits) and does not apply to federal securities law claims (which are usually asserted
in securities class action lawsuits).
Historically, plaintiffs have had little ability to remedy DO mismanagement through a securities law claim. In 1977, the
U.S. Supreme Court, in Santa Fe Industries, Inc. v. Green, 430 U.S. 462 (1977), ruled that a federal securities law claim must
be based upon deceptive conduct (i.e., misrepresentations and omissions of material facts), rather than on allegations of
mismanagement. For more than thirty years that ruling effectively eliminated attempts by the plaintiffs’ bar to circumvent
the BJR through the assertion of mismanagement claims in the guise of a securities claim.
However, more recently plaintiffs are again testing the bounds of what is mismanagement and what is deceptive
misconduct. In the aftermath of several high-profile incidents of sudden and accidental events (e.g., explosions, coal
mine collapses, and natural disasters), plaintiffs have tried to assert a securities class action in lieu of or in addition to a
derivative lawsuit for mismanagement. If successful, this strategy both circumvents the powerful BJR defense and creates
the potential for recovery of huge damages to a large class of shareholders.
An example of this strategy is the DO litigation arising out of the 2010 Gulf of Mexico oil spill. Although the Deepwater
Horizon rig explosion and resulting oil spill was sudden and unexpected, securities class actions were filed against
the directors and officers of British Petroleum (BP), alleging that prior to the explosion and spill the defendants
misrepresented and failed to disclose information regarding the adequacy of BP’s safety programs and BP’s resulting risk
exposure. The defendant DOs argued to the court, among other things, that the securities claims should be dismissed
because the true nature of the alleged wrongdoing was merely mismanagement. With surprising ease and with little
analysis, the Court rejected the defendants’ argument, noting that the plaintiffs alleged the defendants launched an
ongoing public relations campaign before the Deepwater Horizon incident to improve BP’s safety image with investors
and that the subsequent alleged safety misrepresentations were not limited to the Deepwater Horizon catastrophe. The
case is In re BP p.l.c. Securities Lit., 758 F. Supp. 2d 428 (S.D. Tex., Feb. 13, 2012).
The line articulated by the court between mismanagement (which is subject to the BJR) and deception (which is not
subject to the BJR) appears very thin. Under the reasoning of this decision, in almost any situation involving alleged
mismanagement, plaintiffs will likely be able to also successfully allege a securities claim based on deception. In other
words, as a result of this and several other similar recent decisions, creative plaintiffs are more likely now to circumvent
the protections of the BJR by converting a mismanagement claim into a securities law claim. If other courts also allow this
litigation strategy, directors and officers will be facing an increasing number of securities claims arising out of unexpected
events which harm the company and its shareholders.
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4. Fewer Inexpensive Derivative Settlements
In response to the strong protection afforded by the BJR, shareholder derivative lawsuits are frequently settled by the
company agreeing to certain governance reforms and other corporate “therapeutics,” and the defendant directors and
officers (through their insurers) agreeing to pay a modest plaintiff attorney fee award. Although this type of settlement
structure creates questionable benefit to the company and primarily benefits only the plaintiff attorneys, the fee payment
by the DO insurer can be justified in many cases in light of the potentially large defense costs that would be incurred
absent the modest settlement.
The continued viability of this common settlement practice may be questionable in some jurisdictions in light of recent
case law that refused to approve this type of settlement arrangement. For example, in one case the court refused to
approve a $2.85 million plaintiff fee award in a derivative suit settlement involving only corporate reforms. The court found
the corporate reforms to be “cosmetic” and “far too meager” in light of the alleged wrongdoing. To justify these reforms,
plaintiffs’ counsel argued at the settlement approval hearing that after substantial discovery the plaintiffs are unable to
prove the alleged wrongdoing. In a colorful summary of why the proposed plaintiff fee was rejected, the court stated:
By approving this Stipulation of Settlement, the Court would be compensating Plaintiffs’ counsel handsomely and
encouraging plaintiffs’ attorneys in the future to go on fishing expeditions against corporations. Sometimes when an
attorney goes fishing he catches a fish, and sometimes he does not – but when he does not, he should not eat filet
mignon afterwards.
The case is In re Cirrus Logic, Inc., 2009 U.S. Dist. LEXIS 131583 (W.D. Tex., Jan. 8, 2009).
In another recent case, plaintiffs dismissed their derivative lawsuit because the company’s board took certain actions r
equested by the plaintiffs in their lawsuits. Plaintiffs’ counsel requested a fee award from the court because they contended their derivative lawsuit was the catalyst for the board’s actions. The defendants disagreed, contending the Board’s
actions were taken independent of the derivative lawsuit. The Court found the derivative lawsuit was meritless and would
have been dismissed by the Court if plaintiffs had not voluntarily dismissed it. As a result, the court refused to award any
fees to plaintiffs’ counsel. The case is Central Laborers’ Pension Fund v. Blankfein, 2011 N.Y. Misc. LEXIS 4555 (Sup. Ct. NY,
Sept. 21, 2011).
These cases suggest the ability to settle derivative suits by agreeing to corporate reforms and a plaintiff attorney fee
payment may be increasingly limited in certain situations. That may result in plaintiffs litigating derivative suits longer,
more aggressively attacking the BJR and insisting on a monetary component to the settlement in order to show greater
benefit to the company and thus a larger plaintiff fee award. In other words, these seemingly pro-defendant rulings may
ironically increase the erosion of the BJR and the defendants’ loss payments in future derivative suits.
Insurance Considerations
As the BJR protection fades, the liability exposure of directors and offices in shareholder derivative lawsuits increases.
This is particularly troubling for the defendant directors and officers since in most states a company cannot indemnify its
directors and officers for settlement or judgments in derivative lawsuits. Instead, the company’s DO insurance program
is the sole source of financial protection for directors and officers in derivative litigation.
As a result, it is more important than ever that a company maintain the highest quality DO insurance program possible.
In particular, a company should maintain a comprehensive Side A DO insurance, which affords extraordinarily broad
coverage for nonindemnified losses, subject to a limit of liability that cannot be eroded by losses incurred by the
company.
Companies are required under those Side A policies to indemnify their directors and officers to the fullest extent
permitted by law. That indemnification obligation by the company is generally covered under the standard ABC DO
policies, which underlie the Side A policies in a company’s DO insurance program. To preserve the Side A limits of
liability, a derivative suit settlement can be structured such that the defendants pay the plaintiffs’ attorney fees separate
from any settlement payment. Under that type of settlement structure, the plaintiff fee award should be indemnifiable
by the company even though the base settlement amount is nonindemnifiable by the company. For example, instead of
agreeing to a $10 million derivative settlement out of which the plaintiffs’ $2 million fee award is paid, the parties could
agree to an $8 million settlement plus a separate $2 million plaintiff fee award. That separate fee award should be i
ndemnifiable by the company (and covered under the company’s ABC”DO policies), thus preserving an additional
$2 million of the Side A limits of liability.
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5. Conclusions
The recent erosion by some courts of the BJR may be a reaction, in part, to the current economic environment and a
sense that someone should be held responsible for causing or contributing to the credit crisis and related Great
Recession. However, as explained by the Delaware Chancery Court in a recent derivative lawsuit against directors and
officers of Citigroup relating to their alleged involvement in the subprime mortgage collapse, the justifications for the BJR
equally apply regardless of the size of the losses in the derivative lawsuit or other external circumstances:
Citigroup has suffered staggering losses, in part, as a result of the recent problems in the United States economy,
particularly those in the subprime mortgage market. It is understandable that investors, and others, want to find someone to hold responsible for these losses, and it is often difficult to distinguish between a desire to blame someone and
a desire to force those responsible to account for their wrongdoing. Our law, fortunately, provides guidance for precisely
these situations in the form of doctrines governing the duties owed by officers and directors of Delaware corporations.
This law has been refined over hundreds of years, which no doubt included many crises, and we must not let our desire to
blame someone for our losses make us lose sight of the purpose of our law. Ultimately, the discretion granted directors
and managers allows them to maximize shareholder value in the long term by taking risks without the debilitating fear
that they will be held personally liable if the company experiences losses. This doctrine also means, however, that when
the company suffers losses, shareholders may not be able to hold the directors personally liable.
The apparent erosion of the BJR by some courts is inconsistent with the foregoing judicial comments and, if continued,
will significantly increase the liability exposure of directors, officers and their insurers.
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